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Q64 Chairman: Good afternoon, gentlemen. Thank you very much indeed for coming. It is something of a record, I suspect, to
give evidence to two parliamentary select committees in the same day, Mr Faull,
but thank you very much indeed for coming.
This is, as you know, a formal evidence session though we have had an
extremely good two days in Brussels meeting colleagues of yours and Members of
the European Parliament and some of the NGOs.
You probably know that this is the first time the Home Affairs Select
Committee rather than one of the European scrutiny committees has looked at the
influence of the EU on home affairs policy, and indeed everyone is saying to us
that this is a good time to do so and it certainly strikes us that European
Union influence is growing considerably, whatever the decision-making
procedures, so hopefully our final report will be of use to the Parliament in
the UK. I wonder if I could ask each of
you to introduce yourselves for the record and then I will open up the
questioning.

Mr Faull: Thank you.
Good afternoon. Jonathan Faull, Director-General of Justice, Freedom and
Security at the European Commission.

Mr Soreca: Good afternoon. I am Luigi Soreca, Head of the Unit in the same
Directorate-General.

Q65 Chairman: Thank you very much indeed. What we would like to start by doing is
exploring some of the background to the proposals that the Commission has made
in changing decision-making structures on justice and home affairs,
particularly criminal justice issues.
Is there a case for saying that there is undue emphasis placed at the
moment by the Commission on the adoption of legislation rather than the
development of practical co-operation in policing and judicial
co-operation? Can you highlight areas
where in your view we simply cannot move forward effectively just by practical
co-operation and must have legislation?

Mr Faull: There is certainly a considerable place for
practical co-operation and a lot of that goes on. Where we do believe that legislation is necessary is where across
25 (very soon 27) countries there needs to be a common set of rules so that
people know precisely what they have to do so that citizens know what the law
is. We do not have a vast body of
legislation, for two reasons, first because this is still a relatively new area
of the Union's activity, and, secondly, because it is not an area where
legislation is the only answer. We do
not legislate for the sake of legislating.
We propose legislation, or Member States indeed in this area may also
propose legislation, where it seems to be the best response.

Q66 Chairman: Could you be a bit more specific about the
areas where you think that is most pressing?

Mr Faull: To give an example of what has been done, the
European arrest warrant was considered to be something necessary. It could really only be done properly by
legislation. It is not something that
can be done by informal co-operation, obviously, between police forces across
Europe. It is also necessary to bear in
mind the need for the balance which has to be struck at all times between law
enforcement measures and the necessary protection of the rights of the
individuals concerned, and that sometimes has to be done by legislation as
well. Another example from a more
recent period is data retention for telecommunications and computer
information. If we want our police
forces across Europe to have access to or at least to know that there is
available information to which they may need access in carrying out their
investigations into terrorism or other forms of serious crime, that cannot be
done by informal operational co-operation.
It requires some rules and we have the mechanisms in the European
Community in that case to lay down those rules for all the Member States.

Q67 Chairman: Whenever we have asked the same question
about legislation, everyone at least starts by talking about the European
arrest warrant. The European arrest
warrant is there, it is in place, it is working and it was done in the existing
system of legislation within the European Union. I think the Commission was very positive about the Finnish
Presidency proposing the use of the passerelle
to bring some of these matters into the First Pillar. Why, given that something as big and as important as the European
arrest warrant is in place and through our existing procedures, has the
Commission wanted to push towards this more streamlined system of
decision-making?

Mr Faull: Frankly, without drawing simplistic
inferences from timing, it is no coincidence that the European arrest warrant
was adopted very shortly after the terrorist attacks in Washington and New York
on September 11 2001. It is the only
example, frankly, of legislation of that importance which was enacted
relatively quickly and a lot of people believed that without 9/11 it would not
have been adopted that quickly. Some
cynics have gone so far as to say that we might still be talking about it
today. One important contrast, to
illustrate my point, is that with a similar piece of legislation concerning
something called the European evidence warrant, which provides for the
transmission of evidence from one jurisdiction to another in cases of
investigation of terrorism or other serious cross-border crimes from one Member
State to another in the European Union.
We had always considered that to be the inseparable accompaniment to the
European arrest warrant. You surrender
people from one place to another. You
should also, without much more difficulty, put in place, we thought, a system
for the surrender of evidence, the transmission of evidence from one place to
another so that the law enforcement and judicial mechanisms that we all have
can work properly. I have to say that
the European evidence warrant took years to enact and when it was finally
enacted earlier this year it was legislation with many extremely welcome
principles but accompanied by many exceptions, exemptions and derogations for
Member States to keep their own particular procedures in place at the same
time. It is therefore legislation of
less good quality, it is more difficult to apply for judges, for practitioners,
and we think it is less effective than it could be and that it should be. Those examples I think show that without the
pressure of external events which concentrate minds, including the minds of the
legislators, but with the rather cumbersome system of law-making that we have
at the moment for Third Pillar issues, we end up with legislation which is slow
to enact, laborious and sometimes of less good quality than it should be.

Q68 Chairman: I will come to the issue of effectiveness in
a moment, if I may, but the implication of what you say is that if the
decisions were taken in the First Pillar you would get better quality
legislation but possibly a considerable number of countries would have to go
without the various qualifications and reservations that they have got into the
European evidence warrant at the moment.
Could you explain, because I am still a bit of a beginner in this, first,
why you believe that changing the decision-making procedure to QMV would
produce better quality legislation, and, secondly, what are the sorts of things
that national parliaments and national governments would have to give up and
why you feel that the Member States would feel happier with the outcome? The implication is that at the moment
everyone has got the bit that they wanted to protect, in the future they will
not have the bit that they want to protect but everybody should be happier
about it. It is not obvious why that
should be the outcome.

Mr Faull: No, people would not necessarily have to give
up things they hold dear. They would
have to make perhaps a greater effort to persuade the others why it is
necessary to do so, but one should not necessarily be defensive about these
things. If there are good reasons why
something which has worked well at national level should be preserved, or
indeed even extended to the others, I think a self-confident negotiator should
be able to bring that about. Even with
the unanimity system we have at the moment it is rare, very rare in fact, for
one Member State alone to be isolated on a particular issue. Among 27 countries we have a very wide
variety of views, but the move from the Third Pillar to the First Pillar would
not entail only getting rid of unanimity, getting rid of the veto. It would also bring the European Parliament
more into the picture, which would not necessarily, by the way, speed things up
because I am not saying that the First Pillar process is necessarily terribly
quick. Complex legislation involving 27
countries and several European institutions is bound to take time, but the
scrutiny that the European Parliament brings to bear on the issues before it,
the debates between Member States in the Council, the accountability that
ministers representing their states in the Council have to you in national
parliaments, all of that should produce, it seems to us, a better mix of
effectiveness and accountability than the one we have now.

Q69 Chairman: It might be invidious to ask you to name
countries in your position, but you must have had in mind that certain countries
have put certain reservations into the European evidence warrant which
complicate the system and make it more difficult to operate. Can you at least give examples to us, so
that we understand the process, of the sorts of reservations that countries
have got into the final version of the European evidence warrant that really
you think in operational and legal terms we would be better to have done
without?

Mr Faull: One of the big issues in this area of policy
generally is the question of dual criminality: should a particular offence be
characterised as a crime in both countries for something to happen between them,
for the person to be surrendered under the arrest warrant or the evidence under
the evidence warrant? The way we have
tackled it, and it is very difficult because we do not want to set about
harmonising criminal law, I do not think you would want us to do that and,
whatever people believe, we do not want to do that because we would be doing it
for centuries and failing no doubt, is that we take each national criminal law
system as it is but we have to face the problem that people define even crimes
with similar names and similar characteristics differently. Murder in one place is not exactly the same
as murder in another, so what do you do?
What we have done is draw up a catalogue of certain agreed very serious
crimes, and Member States agree that for those crimes, whatever the differences
between their national legal systems, they will surrender people under the
arrest warrant. When it came to the
evidence warrant we had enormous difficulty with one Member State, a rather
large Member State, and I am not going to name names exactly, which wanted to
retain a certain element of dual criminality by saying, "I will not surrender
evidence regarding an alleged crime to another Member State unless the facts
give rise to a crime in my legal system as well", and we had to give way and
compromise in order to get that Member State to agree, when everybody else had
agreed at the end of the day to the evidence warrant, for the thing to go
forward. Another issue which is
terribly important and raises an issue at the heart of the whole European
endeavour in this field is where there is a certain lack of trust between
Member States which causes one or more of them to insist on a final fundamental
rights-based check on what is asked of it by another Member State so that,
instead of an automatic surrender of evidence to another Member State, the
country asked to provide the evidence would look at the facts of the case and
carry out a human rights check essentially.
We have a case of that too written into the legislation for one country
only.

Q70 Chairman: Can I move on to the question of
effectiveness? The extent to which the
type of example that you have given is a practical problem is surely only
where, as a result, crimes go uninvestigated and unpunished and criminals go
free. It is not clear, reading the
Commission's evaluation of the Hague Programme documents generally that the
Commission is able to evaluate what is actually happening on the ground in
terms of our overall effectiveness in bringing criminals to justice as opposed
to evaluating how well this or that piece of legislation has been transposed
into national law. Do you think that
when the Commission is looking at policy in this area it has a sufficient grip
on the real world problems that lie behind the whole debate or is there a
danger that it takes too formal and legalistic approach in trying to have
common approaches across the Union?

Mr Faull: We are conscious of that perception and
perhaps of that danger and we do everything we can to make sure that we have as
many facts and as much analysis as we can available to us before embarking upon
the road to legislation. We do not
propose legislation unless and until we have carried out a full impact
assessment. That impact assessment requires
detailed contact with the Member States, with practitioners, with all sorts of
organisations active in whatever the field may be and it is not until we have
persuaded ourselves and others within the Commission system that this is the path
we need to follow that we propose legislation.
Is it always absolutely perfect?
There are different views on that.
All I can say is that, knowing the complexity of the area across 25 (soon
27) countries, we make every possible effort to do that. The next stage, of course, is making sure
that what we have put in place once the Council has enacted legislation is
being implemented effectively on the ground, and that is why we attach
considerable importance to evaluation.
We do not have in the Third Pillar field the normal enforcement tools at
our disposal of infringement proceedings, let alone the best possible
enforcement tool of creating rules which individuals then go out and have enforced
themselves in the courts, but we are very attached to evaluation of what we have
done to see whether it has worked, whether it was cast in the right way,
whether it needs to be changed in any way, and you will have seen in our papers
that we are setting up a rather comprehensive evaluation system on all that we
have done so far in the Third Pillar to check that it is working properly.

Q71 Chairman: On the European arrest warrant, it has been
put to us by several people that possibly no country has exactly put the
European arrest warrant into national legislation in the way that was implied
by the directive. However, it is easier
to find out, as far as I can see, the Commission's view on whether countries
have put it into international law correctly or whether they have had unwelcome
reservations and exclusions and so on than whether there is a major problem of
significant numbers of people avoiding extradition because of the different
quirks of national legislation. In the
evaluation you are going to do are you going to give us more of that latter
type of hard number counting information as opposed to legal analysis?

Mr Faull: Absolutely as much as we can but we are at
the mercy of the Member States who have to give us this information. I say "have to". There is no legal obligation to do so. We depend on their goodwill, and indeed the legal professions
insofar as they can, in letting us know precisely what is happening on the
ground. We want to know that and
whatever we can find out we will divulge more generally. It is very much in our interests to do
so. Whoever said that it has not been
implemented properly anywhere sounds a little harsh.

Q72 Chairman: Or "absolutely fully", I think it was.

Mr Faull: Okay, "absolutely fully". Perhaps "absolutely fully" is a hard test to
meet, but we already know of some very significant cases in which it has worked
and it has been used and it has brought extradition times, to use the old -----

Q73 Chairman: If I can just interrupt, that is my point in
a sense. It appears to be working even
though a purist might say, "It has not been implemented in the most efficient
manner because there are countries that have got different exclusions and will
not allow their citizens to be extradited for this or that purpose". It does not look in practice as though those
anomalies create a major problem for the European Union's aim of freedom,
security and justice.

Mr Faull: We know what has happened. We do not necessarily know, and this sounds
a bit Rumsfeldian, what has not happened.
We do not know what we do not know, and these are early days. It is quite true that in many countries the
previous constitutional bar on extraditing one's own nationals was a very
serious problem, and we have seen litigation and we are now seeing
constitutional amendments in countries in order to be able to implement the
framework decision properly because, let us face it, it was finally adopted in
rather a hurry after 9/11, even though it had been in gestation for some
time. To repeat, we will publish all
the information we can possibly get We
have something called the "scoreboard plus" which is essentially naming and not
necessarily blaming; it might be naming and praising, but we will name Member
States showing precisely what has happened.
To illustrate and to answer your question more clearly, if it is
difficult for a Member State still, because it has not completed internal
constitutional changes, to extradite its own nationals then, if the early cases
that we can point to as successes concerned non-nationals, so much the
better. What we do not know yet is how
many cases are being delayed or have gone wrong because of the
difficulties. So far the story is a
reasonably positive one, much better than it would be without the framework
decision at all.

Q74 Mrs Dean: Can I turn to police co-operation? There are a significant number of EU bodies
which now exist to facilitate practical co-operation between Member States'
police forces. What types of crime are
they unable to tackle effectively at the moment and do you think there are
areas which require harmonisation rather than practical co-operation?

Mr Faull: There are areas where we think that some
legislation is needed. For example, we
believe that Europol, the European police organisation, could be more
efficient, could be more effective, if the current system on which it is based,
a series of conventions requiring ratification, were replaced by a fully
fledged legislative system. We are
proposing that that be done, and again we believe that it would be done more
effectively, more accountably, better in short, if it were done on the
traditional European Community basis of qualified majority voting in the
Council, involvement of the Parliament and adjudication by the Court. There are other items of legislation, and I
will choose two categories, one already in the system but going through slowly,
and the second still to be introduced.
We have legislation, for example, within the Council system but, frankly,
bogged down there on racism and xenophobia and on minimum procedural guarantees
for suspects and defendants. We believe
that both of those issues are important.
We believe they are important not because there are Member States which
do not take racism and xenophobia seriously or do not take defendant or suspects'
rights seriously, but because we believe that the European interest would be
served and European law would be better enforced if there were a common minimum
set of rules across all Member States.
That would enhance the confidence that European citizens should feel in
their different legal systems. Then,
looking ahead, we have agreed at the highest level, at the European Council
level in the EU, adopted something called the principle of availability which
means that information held in one Member State to which the law enforcement
authorities in that Member State would have access should be made available to
the law enforcement authorities in other Member States on the same terms as the
national law enforcement authorities would have to satisfy to have access. That is easy enough to say is a principle;
it is hard to work out in practice.
What do you do about DNA databases?
What do you do about other forms of database, of which there are very
many now being collected all over Europe?
All of that needs to be worked out in practice. It is very important. The law enforcement people all tell us how
important it is for their work in investigating serious crimes and their work
in investigating terrorism, not only in Europe but we hear from our American
friends and others further abroad that they would love to be in on any advances
we make in these areas as well. It is
not easy. There are very important data
protection issues to be sorted out in each case. Again, it would be better if we could embark upon those
legislative projects on the basis of qualified majority voting, involvement of
the European Parliament and adjudication by the Court of Justice at the end of
the day.

Q75 Mrs Dean: Could you describe to us the difference
between Europol and Interpol and what is the potential for co-operation between
the two bodies?

Mr Faull: Interpol is a universal international
organisation. It does extremely useful
work and we and Europol itself have good, close co-operation with it as users
of its various systems. For example,
Interpol has a very important database, to which we have contributed, of lost
and stolen passports. It is very
important that immigration officials, when presented with a passport, can very
quickly check that it really is the one which was issued to the person before
the immigration official. That is something
which we are all very happy to do through Interpol, and we and the Americans,
in fact, together took the initiative to make sure that everybody pours in
their lost and stolen passport information to that database. Another very important illustration of
Interpol's work is in tracing child pornography websites. Interpol again has a very large database of
offenders, of images, enabling it to determine fairly accurately where filming,
kidnapping or whatever lay behind the dreadful images which are made available,
took place. They can, for example, look
at a wall like that - they gave us a very useful presentation once - and find
somewhere, the electricity point which is in the corner there, and tell you
what country it is from. That is all very useful. That is Interpol work, not Europol work, and we fund that, by the
way, we, the European Union. Europol is
a much more focused and, if you like, intimate organisation based on the need
for the European Union itself with a fairly open, large territory to co-ordinate
its own police work across that territory, knowing that the police forces, of
course, are operating at national and local level everywhere. Europol is designed to co-ordinate, and
perhaps one day actually to run, investigations itself in a way which Interpol
is not designed to do at all. Interpol
is not a police force in any way. It is
a relatively loose international organisation co-ordinating work all across the
world.

Q76 Mrs Dean: How effective has the Schengen Information
System been in tackling cross-border crime?
What major developments are envisaged in the second generation system?

Mr Faull: I think it has been very effective. When you consider all that has happened in
the world since the Schengen area was created, the fact is that it has proved
remarkably robust. We have kept borders
open with the exception of very short closures for large international events,
sports tournaments, even European summits, from time to time. On the whole we now have a whole generation
of Europeans perfectly used to moving around freely between most of the Member
States of the European Union plus Norway, Iceland and very soon Switzerland.
That is only possible because of what is going on behind the scenes, because of
the co-operation that was already in place, of course, but no doubt is seen by
the general public to have taken the place of what used to happen at the border. It is much more complicated than that
because the borders were already losing their significance as intelligence-led
police work became more and more important, but today among nearly all
Europeans, not you and not Ireland, of course, the borders have disappeared
internally, which means in turn that the external borders are run collectively
and that there is a sophisticated system of co-operation behind the scenes, the
Schengen Information System first generation being the system in place still
today. What will happen in the second
generation is that first of all the capacity will be considerably expanded
because the Union has expanded and more Member States will join, and we have
technological and other political developments to take account of in the intervening
years, the advent of biometrics and the further work, again among the Schengen
countries, on a common visa policy. All
of those new developments will be integrated into the second generation system.

Q77 Mrs Cryer: It has been said that mutual recognition of
decisions taken by national judges is set to become the cornerstone of judicial
co-operation on criminal matters. I
know that you have already said that making information available
state-to-state is going to be extremely important in all of this. The Commission has stated apparently that
"the functioning of the European judicial area could be undermined by
differences between national criminal legislation", and that approximation of
legislation is needed to avoid criminals being able to choose the jurisdiction
under which they are tried. Therefore,
how far has the functioning of the European judicial area been undermined in
practice by differences in Member States and how significant is the issue of
criminals choosing to be tried in different jurisdictions?

Mr Faull: First, we do believe that mutual recognition
is at the heat of what we are trying to do and we look forward to a Europe in
which a judgment given in one country will without further ado be recognised
and enforced in all the others. We are
not there yet. One of the reasons we
are not there in some cases is that differences between the legal systems pose
obstacles. There are two reasons why
mutual recognition is still an aspiration rather than a reality. One is relevant differences (and only
relevant ones), and, secondly, there is still a lot of mutual trust to be built
up between legal practitioners, between judges, between lawyers, and above all
between the publics of our Member States so that they feel that they get as
fair a trial abroad as they do at home.
We are, frankly, a long way from that.
Most Europeans stubbornly believe that their national system is the
best. Some even more stubbornly believe
it is the only fair one there is. They
cannot all be right, obviously, but that is a popular view which is out there
and is sometimes an obstacle to the simple position that what happens in one
country should be followed easily in the others. Mutual recognition is at the heart of it but there is some need
for common ground on some of the issues that we are talking about. For example, there are considerable
differences in laws in the European Union regarding expressions of racist and
xenophobic views. It is a matter of
considerable controversy in most of our countries and, for quite obvious
historical reasons that I do not think I need to go into, some countries treat
racism and xenophobia more harshly than others, some believing that freedom of
expression is the paramount value and that we have to put up with unpleasant,
offensive language, others believing that some language is so offensive or so
redolent of horrors in that country's history that freedom of expression should
give way to a certain extent. Those are
in a nutshell some of the differences we have to deal with. It is not difficult to exploit those
differences by publishing material or by publishing a website in the country
where the regime is most favourable, and that happens. Another example, not necessarily exploited
by criminals but one which goes to the heart of the question of mutual
confidence which I think is the necessary prerequisite for mutual recognition,
is the question of minimum procedural guarantees. We are, and I will be very frank with you, having great
difficulty in persuading the Council of Ministers that robust legislation is
needed to create a minimum set of common procedural guarantees for suspects and
defendants across the European Union.
The answer we are sometimes given by those who do not see the need for
such legislation is, "But we all have the European Convention on Human
Rights. We all have the European
Union's Charter of Fundamental Rights.
We have a lot of common rules already.
We are all democracies, after all, and we all respect the rule of
law. What more could you possibly
want?", the answer to which is that we do not have some of the more detailed
rules which would go a long way towards reassuring people. It is nowhere written down that Europeans
have the right to a translator to explain what is going on when arrested in a
foreign country. Normally it
happens. Again, most of our countries
provide this and we are all democracies, it is true, but it is not written down
anywhere and it would, it seems to us, be a considerable factor of reassurance
for European citizens, all of us, to know that certain minimum rights are
guaranteed across the European Union, whatever Member State we find ourselves
in, those rights being written down in a form which everybody can read and
understand in their own language.

Q78 Mrs Cryer: Can we go on to the drawing up of
proposals? How much does the Commission
draw on the practical experiences of Member States as opposed to matters of
principle such as democratic control?

Mr Faull: We draw enormously on the experience of
Member States. We are very conscious of
the fact that we are sitting here in Brussels, a long way from the sharp end of
criminal law enforcement in our Member States, and therefore, before putting
pen to paper, we think many times about the need to do so and we collect as
much factual evidence as we can from those who practise law, who are
responsible for criminal justice, whether in parliaments, in ministries or in private
practice as lawyers, in the Member States.
We do not start from positions of general principle other than, of
course, always to have in our mind - and you mentioned the principle of
democratic control; that is obviously very important and we are not about to
forget it - the fact that we have to prove in every case that European action
is needed, there are many people who need to be persuaded of that and we have a
considerable to discharge which can only be discharged properly by amassing
facts and explaining why there is a problem that needs to be solved.

Q79 Mrs Cryer: What is the extent in the Commission's view
of the competence of the European Community to adopt criminal law into its
First Pillar?

Mr Faull: That depends on a reading of one paragraph of
one judgment of the Court of Justice at the moment. No doubt anything that happens will be challenged and litigated
and will give rise to further judgments, so I will be cautious in my
answer. In our view, where there is an
important policy objective laid down in the European Community Treaty and it is
necessary, in order to give effect to that important policy objective, to
create in Community law a prohibition, and in turn it is important to provide a
proper enforcement of that prohibition, then the European Community may (and it
is the Council, of course, not the Commission) or the Council and Parliament
may require that certain minimum criminal sanctions be applied.

Q80 Chairman: Mr Faull, you have spoken as though
approximation of legislation is a sort of one-way journey towards greater
public acceptance or mutual recognition.
Do you accept that there could be circumstances in which, at least in
some individual countries, it could damage public acceptance of the idea of
mutual recognition and co-operation within the EU?

Mr Faull: Yes, if done wrongly or insensitively, I suppose
it could. We are at all times aware of
and sensitive to the legal traditions and principles which differ from one
country to another and we respect them, we do not seek in any way to change
them, which means that when we embark upon the necessary but exceptional
approximation of substantive notions of criminal law we do so in a way which
respects and preserves national traditions.
If we do all that right we, the Commission, in making an initial
proposal and then the Parliament and the Council coming together to legislate,
if we are in the First Pillar, or the Council alone in the Third, then I do not
think we should produce the negative result that you refer to.

Q81 Chairman: Can I ask you how you might approach one of
the particular topics that you mentioned earlier, which is xenophobia? As you will know, in our Parliament there
has been a furious debate over five or six years now about the possibility of
outlawing some form of crime of religious offence or hatred or whatever which
Parliament has been reluctant to approve.
As it happens I am one of those who has been in favour of it but I have
been in a minority in Parliament on that issue. We have recently had a case under which a far right leader has
been able to be acquitted under the existing state of the law because his
offensive remarks were limited to religion rather than to race. If our Parliament were to adjust our laws,
and it is a moot point as to whether they will, so that those sorts of remarks
would be caught in the future, I can see that that would be seen by the public
in the UK as a democratic national decision.
If changes to our law in this sensitive area were introduced as a result
of qualified majority voting, or indeed any type of European process on which
we had to confer, it might actually create a situation where we were making a
problem worse rather than better. How
do you go about, in these very sensitive areas where national traditions, as
you say, are very different, avoiding simply inflaming a problem in a
particular country?

Mr Faull: With enormous caution. I do not think that the European Union
should be responsible for settling controversial debates of national policy or
national law in that way. I do not
think that is what the European Union is for and I do not think it serves the
European Union well to put it in that position, so I would do everything I
could to avoid that being the outcome of the proposal, and when considering
what definition might be acceptable across all Member States for xenophobia,
say, we would certainly bear in mind the state of national law and debate in
each country before doing so, and it may be that we just fail to make any
progress, which frankly is the position at the moment. I do not suggest that with qualified
majority voting we would necessarily have got a framework decision or a
directive on racism and xenophobia on the statute books already. I do not know whether that would have been
possible. For a long time it was
apparently the case that one country alone was blocking progress but we have rather
suspected all along that others were keeping quiet and hiding behind that
Member State (not the United Kingdom, by the way) and, lo and behold, when
after a change of government in that country its position changed, we found
various other countries with similar difficulties. It may be that some subjects are just too hard and that the state
of national debate in various countries across the Union is so different that a
common view is impossible to find. That
is a pity because the necessary confidence which any criminal law system needs
as a basis is how to find in Europe if there are too many cases of that sort,
but this is a hard subject. It is a
relatively new subject for the European Union's activity. It is therefore, I think, right and proper
that we should proceed modestly and humbly in the way we operate. Can I make another point which is important
in this respect and relates specifically to the British position in respect of
the bridging clause? I see you
sometimes refer to it as "gangplank", which sounds rather sinister. I shall say "bridging clause" if I may. "Gangplank" makes one think of walking
it. The United Kingdom has an opt-in
system, of course, and one of the results of use of the bridging clause by
moving subjects from the Third to the First Pillar would mean that those
subjects would no longer be subject to the unanimity rule but would be subject
to the United Kingdom's opt-in rule, and that is a feature, I think, of the
rather complex legal arrangements that we are talking about which are sometimes
forgotten but would be worthy of some attention.

Q82 Mr Benyon: Can I come back to the point that John Denham
was making earlier? It has been put to us
that the reason many of these proposals have hit the buffers is precisely
because the Commission was too ambitious in the first place. You seem to be saying that you come at this
in a very humble way and with an understanding of the sensitivities in different
states, but there is a belief amongst some Member States that actually it was
precisely the reverse. You completely
refute that?

Mr Faull: I am not saying we are perfect and maybe we
get some things wrong so I am not saying I totally refute it. I think on the whole we have made reasonable
proposals. I notice that most of the
time a considerable majority of Member States agrees with what we are doing. I notice also that, since in the Third Pillar
at the moment Member States also have a right of initiative, where Member
States have made proposals they do not seem to fare much better than ours, some
make it, some do not, and therefore I am not saying that we are not at all
responsible for the current difficulties but I do not think an over-ambitious Commission
is really the main reason.

Q83 Mr Benyon: Can I ask you a quick question about Eurojust
and the European Judicial Network? What
challenges, in terms of judicial co-operation, does the EU face which you feel
Eurojust and the European Judicial Network are unable to address and are there
any particular crimes or cases which cause difficulties in this area?

Mr Faull: First of all, the judicial co-operation
network on the whole we are satisfied with.
It works well. It brings the
people who need to talk to each other together. It has a website which spreads information around fairly
satisfactorily. It is a complicated
area because case law needs to be translated and explained from one place to
another. As for Eurojust as an
institution, as a body, I think it has done a fairly good job. I think it has potential. I think in some big cross-border
prosecutions, for example, taking our own business, a set of cases of fraud
against the European Union itself, the co-ordination that Eurojust is able to carry
out among national prosecutors is very helpful, but it is only that. It is co-ordinating national prosecution
efforts. It cannot bring them together
in one prosecution effort. Okay, it is
not a European prosecutor, that is a path which has not been followed yet, and
the various procedural and substantive difficulties where various national
legal systems are being used to prosecute the same set of facts are there
whatever Eurojust does, but Eurojust enables them to be identified and to share
information about them. That is true
also of international trafficking, in women and children mainly, and in child
pornography, in all of which Eurojust has played a very important role in
co-ordinating prosecutions across a number of Member States. It is doing a very important job.

Q84 Mr Benyon: In the next few questions many of the areas
have already been covered; they are concerning the European arrest warrant and
the European evidence warrant. Related
to that, on mutual recognition, I sense that you feel that mutual recognition
still represents the best basis for policing and judicial co-operation. Can you think of areas where it has
unsuccessfully addressed real problems in tackling crime and areas where it has
been particularly successful? Give us
an idea of where you think it is working well and where it is working badly.

Mr Faull: I will come back to examples already given,
and I do that because there is not a vast body of legislative proposals out
there. We do not see this as an area
where there are going to be hundreds of directives or hundreds of framework
decisions. We have, frankly, a limited
set of ambitions. The evidence warrant
should be, and is to a certain extent because the way it came out is not
perfect but it is worth having, a very important instrument for mutual
recognition whereby a judge in one country says, "I am investigating a
particular case. There is an item of
evidence which is of importance for my case.
It happens to be located somewhere else. I want it", it should be as easy as we can possibly make it for
the legal system at the other end to provide that evidence and send it
back. If we have to go through, as has
been the case hitherto under traditional mechanisms of international law and
practical co-operation, a whole process which can or cannot be politicised in
some way, which can involve judges only but not necessarily, for determination
of whether it is appropriate for the country receiving the request to provide
the evidence to the country which made it, that is going to take a long time
and is going to undermine the very notion of a common area of justice which the
European Union is supposed to represent.
The evidence warrant is an example of an imperfect mutual recognition
device where things are easier than they used to be. They are still not as easy as we would like them to be but it is
worth having. Among the 32 crimes
listed in the European arrest warrant drug trafficking is the one in which the
warrant has so far proved most successful in dealing with drug traffickers and
there are already - and we will give the figures in our next report - a number
of cases of surrender of alleged drug traffickers from one jurisdiction to
another to face trial.

Q85 Mr Benyon: What effects could legislating for minimum
standards on defence rights have on Member States' authority to decide issues
such as pre-charge detention? You will
be aware of the contentious issue that that was last year in the UK. In such sensitive areas how strong is the
operational justification for pursuing a path of approximation or minimum
standards in this area of law?

Mr Faull: I think there is a strong general case for
minimum standards and I think there is scope for very lively argument about
which particular issues should be subject to minimum common standards. Are we
talking about the right to have a translator, the right to a place to call to
your embassy or consulate, the right to a statement of your rights in your own
language? Are we talking about more
sensitive subjects, such as the number of days you can be kept in prison
without charge, knowing that, particularly in the recent period, that has been
a particularly controversial subject affecting a number of Member States, and
also a subject which reflects very different legal traditions across the
Union. We are well aware of that and it
seems to me that our humility and modesty principles apply to our approach to
such issues.

Q86 Mr Clappison: On the same theme of further areas of
decision-making for the Commission and the Council of Ministers, Commissioner
Frattini has stated that "the question of migration must be considered in a new
perspective". What plans and
aspirations does he have in the field of migration and illegal working?

Mr Faull: First of all, just to link the two subjects,
we are in the rather odd position at the moment that most of illegal
immigration and asylum issues are dealt with under the First Pillar while legal
migration, economic migration issues are dealt with under unanimity rules. That for a start strikes us as rather odd,
dealing with two facets of the same phenomenon in such different ways. It does not strike everyone as odd,
obviously, but we do feel rather hamstrung in our ability to deal with
migration as an international phenomenon given that legal dichotomy. What are his aspirations? I think his aspiration, and this is no doubt
a very long term one, is that the drama and tragedy of illegal immigration into
the European Union, most recently mainly across the southern Mediterranean
border but in recent memory as well across the eastern land borders, should
stop. At the moment every summer, as
soon as the weather is reasonably good in the Mediterranean, there is a
constant flow of fairly shaky vessels setting out from the coast of north and
recently west Africa to reach the shores of Italy, the Canary Islands and Spain
as well, leaving hundreds of people dead every summer in the Mediterranean
attempting to get across, leaving thousands stranded in the transit countries
of north Africa not able to leave to get across to our borders where mostly
they would be illegal migrants, and leaving Malta, Italy and Spain in
particular with the enormous burden of coping with illegal immigrants, not
necessarily all illegal but certainly immigrants through irregular channels,
arriving in their territory, some with asylum claims to make, some with papers,
some without papers, and all in all a considerable burden upon those countries,
knowing all the time that the intention of the people concerned was not
necessarily to settle in those countries at all but to break out and move
further north if conditions were possible.
Mr Frattini would like that to stop.
He does not believe it is in our interests, he does not believe it is in
Africa's interests and it is certainly not in the interests of the people
concerned. The long term solution to
that problem is economic development in Africa. People most of the time are happy to stay at home if conditions
at home are conducive to a normal decent life.

Q87 Mr Clappison: That is a big ambition though.

Mr Faull: It is a huge ambition. It should not be forgotten but it does not
solve this summer's problem or next summer's problem. We are well aware of that.
The global approach to migration, which involves at the highest level
the United Nations but at a region-to-region level a very serious dialogue
between Europe and Africa, is extremely important and that must go on in
parallel while at the same time we deal with the symptoms of the problem as
they are felt daily here in the European Union. What can we do about it?
First of all we can help the Maltese, the Italians, the Spaniards and to
a certain extent the Greeks and the Cypriots as well patrol their borders,
patrol the Mediterranean. We can help
them with equipment, we can help them with people, we can help them with
techniques, we can share the burden, we can help them with money. The European solidarity is not just a
buzzword in this area. It is an
important principle and one that requires working out in practice. These are our borders, and I say "our"
meaning all of us, Schengen or not.
They are doing our job, they are protecting our external borders, we
should help them do so and we do help them do so. We have, albeit with limited resources, an External Borders Agency
now up and running in Warsaw to which Member States are all contributing and a
great deal of effort is being made to help the southern Member States, and to a
certain extent the eastern ones as well, discharge their burden of operating in
the common interest of their borders. We
also have to be aware of the fact that we exercise a considerable pull factor
for illegal immigration by providing employment, often illegal employment, for
illegal immigrants and if we are serious about stopping not only push from
there but also pull from here Mr Frattini also believes that we should crack
down together on illegal employment. It
is a crime in most Member States, enforced in varying degrees in all Member
States, in fact, and we will be considering in 2007 whether a proposal for a Europe-wide
initiative, perhaps even Europe-wide criminal sanctions, should be set in place
in order to crack down on illegal employment.

Q88 Mr Clappison: Thank you very much for that very
wide-ranging answer which was very helpful, but can I tentatively suggest to
you that there is a distinction as far as Europe is concerned between legal and
illegal migration because, by its very nature, each of the members of the
Community has it in common that the immigration is illegal. It is not to say that people have done
anything wrong; they just do not have a legal right to enter the
countries. We have that in common
throughout the Union and, as you say, there are lots of ways in which the
Member States can help one another, particularly on the southern border and also
possibly, which is slightly more contentious, on the whole dialogue about
international migration with the United Nations and developing countries. On the question of legal migration can I
suggest to you that it should be for the individual Member State to decide who
they wish to have legally migrate into their country, taking into account, for
example, economic needs, and this is the direction in which the British
Government seems to be travelling at the moment particularly? Is it not for each country to reach an
assessment of the economic and other factors peculiar to those countries which
they want to take into account in determining the extent of migration, and also
recognising the fact that there are attractions? Some countries are frankly much more likely to have mass
migration than others in the Union.

Mr Faull: That is indeed the situation as it stands
today and I expressed some regret about it for several reasons, one, because it
means that when the Union collectively talks to its neighbouring regions, which
are the main sources of migration, we talk collectively about one side of the
picture and then, as 27 different people, about the other side of the picture,
which is the number of people we welcome to join us legally. I am not suggesting that there will ever be
a European immigration policy where somebody in Brussels will decide, "We will
have 100,000 of this and 150,000 of that".
What I do think would be useful, and I speak from practical experience,
is that when we talk, for example, to foreign countries about re-admission
agreements, we negotiate on behalf of the Community readmission agreements
whereby the country on the other side undertakes to take back illegal entrants
to our territory from its territory, whether they be nationals of the country
concerned or even third country nationals who transited through its territory.

Q89 Mr Clappison: That is going back to the point about illegal
migration and I am with you on that point, but not on the legal point because
that should be for countries to decide themselves, taking into account their
individual circumstances, should it not?
In Britain's case we have quite a lot of circumstances to take into
account which are particular to us.

Mr Faull: I understand that, but when negotiating such agreements
on the illegal side of the fence with foreign countries we are severely
handicapped by not being able to talk about what they want to talk about, which
is, "How many legal migrants from our territory have you taken, will you take,
are you going to take?". We can tot up,
in so far as Member States actually have reliable figures, what each individual
Member State does and say, "This is what happened last year and what we think
might happen next year", but we have no possibility of arriving at a common
view on that, and I think sometimes it would be in our interests to do so. Secondly, we have free movement of labour
among nearly all our Member States, and pretty soon, I hope, among all of them,
including those about to join us. In an
area in which people are moving around freely, in an area in which for most of
us Schengen makes that moving around freely even easier, in an area in which
decisions to regularise (to use a Gallicism), to give papers to undocumented
workers in considerable numbers, those decisions are taken in individual
countries, all those things have an obvious impact on all the others. However, because there is no Community
policy on legal migration, nobody needs to tell anybody else about it or
conceive of any common policy in that regard, we are frankly in a very weakened
position to move together in these important policy areas, handicapping us,
therefore, in our international relations (and migration is an international
issue), and, secondly, making it very difficult to avoid the decisions which
one country takes causing immediate repercussions and a great deal of
resentment in most of the others.

Q90 Mr Clappison: Just on the first of those points, and I take
the point you make about the bargaining which goes on on the readmission,
allowing more legal migration is not a solution to illegal migration in the
countries in question because there is literally an unlimited number of people
who want to come to Europe in those countries.
You could allow a few more people in legally and you would still have an
equal number of people wanting to come illegally because there is such a huge
pressure to come.

Mr Faull: There are some successful examples of
national practice in this area. The
Italians, for example, concluded agreements with Albania in the north and
Tunisia in the south whereby they said, "We will take a certain number" - a
quota in effect - "of Albanian and Tunisian legal migrants respectively in
return for a real concerted effort on your part", they said to Tunis and to
Tirana, "to stop in excess of those numbers any illegal migration", and from
what I understand of the Italian experience that largely worked because they
were honest about it, they knew that, for all sorts of demographic and other
reasons, they would not mind the arrival of certain numbers of regulated
economic migrants, but they wanted to stop illegal migration. I am not saying we can replicate that
necessarily but a policy which deals with illegal immigration as a collective
issue and legal immigration as 27 different national ones is a considerably
handicapped one.

Q91 Mr Clappison: We understand the Commission is proposing framework
European directives for specific types of migrant workers. As you may know, the UK Government has its
own proposals on the table for what it calls a points-based system for
migration. What implications are there
for that points-based system in the UK from your framework directive?

Mr Faull: We have not finalised it yet. We are watching with great interest the UK's
ideas and experience and the UK's ideas in turn were inspired by other systems
around the world which we are looking at as well. We will not propose something which would radically change
systems put in place by Member States.

Q92 Mr Clappison: In the Commission's view what are the current
challenges for EU border management and how do you view the future role of
FRONTEX?

Mr Faull: The challenges are quite enormous. We have extremely long land borders, we have
complex sea borders and we have a lot of international airports, so we have a
bit of everything. To run all of those
borders under the same rules, procedures and systems, which is true for the
Schengen area, is a challenge in itself but one that we have been meeting
already for some time. The European
Union is expanding. There will be two
more countries in a few weeks' time and the external border will therefore be
moving outwards, but at the same time on the internal borders there is a good
prospect of the border controls being lifted soon which will release people and
equipment to move them further out, so there are great challenges. FRONTEX has really been in existence only
for a very short period of time and is still a rather small and under-staffed
organisation. I think it has a
considerable role to play in risk analysis and in operational co-ordination of
the national border guards so that they can more effectively help each other in
times of difficulty.

Q93 Mr Clappison: What progress has been made on the rapid
reaction teams and what is their envisaged role on external borders?

Mr Faull: As their name suggests, and the legislation
is before the Council, under discussion, not adopted yet therefore, the idea is
that there would be teams available for rapid intervention in times of crisis
at one of our external borders. It
could be at sea, it could be on land.
The eastern borders have been relatively quiet in recent years, the
focus being on the Mediterranean, but we have no illusions: that can change,
depending on events in our immediate neighbourhood, and we have challenging
neighbourhoods around the place. The
idea is that we would therefore formalise what already happens to a certain
extent, which is operational co-ordination between national border guards
lending people and equipment from one place to another.

Q94 Mr Benyon: I want to come back on something you were
saying earlier. We are having a debate
in the UK at the moment about migration and my party is putting forward a
proposal to have a sort of rolling allocation of the number of migrants we would
be prepared to accept. It is going to
be a very complicated process and I think it probably could work, but the idea
that this could somehow be dealt with at an EU level seems to me
fantastical. I take your point that it
will give you the ability to talk to neighbours, but I simply do not see that
it can be done in a way that is (a) effective externally but (b) satisfies
Member States internally.

Mr Faull: I certainly have no comment to make on the
internal British debates on this issue.
All we would want to be in a position to do would be to say that the
Member States of the European Union collectively take a certain view about
their economic migration intentions or needs.
It might be no more than adding up what each individual country plans to
do, because one way or another, whether specifically laid down with targets or
not, Member States do take a view looking ahead, or they should be taking the
view looking ahead, about the needs of their labour market and how they intend
to supply the needs of their labour market.
That involves thinking about future migration trends and that is
happening. It is happening at the
moment in isolation in 27 different ways and every country is having the same
sort of difficult debate within and between political parties as you are. That in a European Union within which there
is free movement of workers, imperfectly but it is coming, among nearly all of
whose Member States the Schengen system is in operation, strikes us as being an
inadequate response to a common challenge.

Q95 Chairman: Mr Faull, you have been very generous
with your time. Just to close, can I assume, given the lack
of success in the Finnish Presidency, that we will not hear any more about the passerelle proposal?

Mr Faull: No.

Q96 Chairman: When do you expect us to hear about it next?

Mr Faull: Next week probably. There is a Justice and Home Affairs Council next week, and then
there is a European Council. Frankly, I
do not expect an enormous breakthrough at either of those meetings. There will then be six months of German
Presidency of the Union and we will see what happens during that Presidency to
wider institutional issues which may or may not be debated. By next summer we may have a better view of
where the Union is going more generally, and then it may or may not be
necessary to come back to the bridging clause issue.

Chairman: Thank you very much indeed for your time.

Witnesses: Mr Timothy Kirkhope, a Member of the
European Parliament (European People's Party-European Democrats), Mr Michael Cashman, a Member of the
European Parliament (Party of European Socialists), Mr Graham Watson, a Member of the European Parliament (Alliance of
Liberals and Democrats for Europe), and Ms
Jean Lambert, a Member of the European Parliament (European Greens-European
Free Alliance), gave evidence.

Q97 Chairman: Could I thank you all for agreeing to come
here this afternoon, which I think is probably an unusual event for Members of
the European Parliament, to give formal evidence to a Select Committee, but
there is no reason why we should not do it and I think it is going to be very
interesting for us. Quickly by way of
background, as you will probably be aware more than most, although our
Parliament has a number of committees that specialise in scrutinising European
Union affairs, our committee, the Home Affairs Committee, has not ever, as far
as we can establish, undertaken a broad-ranging inquiry looking at the
influence of the EU on justice and home affairs issues and we have decided to
do it for the obvious reason that the EU is becoming more and more significant
in setting our own domestic agenda, whatever we think is happening at an EU
level. The visit here, the informal
meetings as well as the formal sessions, are part of an inquiry which will last
for about four months to try to give us some strategic sense of what is going
on across the whole range of justice and home affairs issues. We are interested in learning from you as
British Members of the European Parliament your perspectives on policy-related
issues as well as the institutional scrutiny issues that you are involved
in. A number of respondents to the
inquiry, including some of you who have given us written evidence, have
mentioned public security as one of the aims of the Union. Mr Watson, you said that the domain of
public security is probably the one where the gap between what the public
expects and what the Union provides is widest.
Could I ask each of you briefly to give us an example of an area where
you think the Union is failing in the area of public security, and others may disagree
that this is a problem? Perhaps I can
start with you, Mr Watson.

Mr Watson: I am not sure, Chairman, how widely you would
wish to define public security, and this is not terrorism related, but perhaps
I could give you an example from my own constituency, in fact, one of Don
Foster's constituents. The gentleman
was married to a Spanish lady. They had
a child. The marriage broke up. The Spanish lady took the child back to
Spain. The gentleman has no rights of
access to his child, has not seen the child for two years, all kinds of
problems arise. I am sure your Member
have these kinds of issues in their constituency mailbags all the time. It is the failure of the Union to deliver on
issues like this which deeply frustrate my constituents in the south west of
England and Gibraltar because they believe that the Union should be capable of acting. It is patently not capable of acting because
it does not have either the legal powers to do so or the mechanisms which allow
it to act effectively. I take that as a
simple example.

Q98 Chairman: Thank you.
Would anybody else like to suggest where there is a gap or to argue that
there is not a gap?

Mr Kirkhope: Chairman, I did not put in, I do not think,
any such remark. I think this comes
back to the crunch point all the time as to what should be the competences of
the EU. Graham has just underlined a
very critical matter and that is that where the EU should be working, ie, in a
co-operative effort between the nation states and their various agencies, it
fails almost every time to do so. I do
not want to bang any drums but I had a report, Joint Investigation Teams.
It went through not only this place but was then adopted by
Council. It went through your party's
Queen's Speech, which is from my point of view a slight embarrassment but it
did, and it should therefore have resulted in there being a close co-operation
dealing with major crimes and terrorist issues where joint teams could be set
up between law enforcement agencies across Europe. It did not happen - or at least it happened, I think, on one or
two cases because I questioned recently the officials here. The reason it has not happened properly is
that people are not prepared to co-operate to the extent necessary to make it
work, so I am not so concerned as Graham.
My concerns are that in the areas of co-operation we are not seeing the
level of co-operative effort between the nation states that we should rightly
expect and which the public should rightly expect.

Ms Lambert: Again, I think part of this is going to
depend on what we mean by public security.

Q99 Chairman: Let me say that in Mr Watson's evidence, and
I do not want to say that other people should say the same thing, he talked
amongst other things of trans-border organised crime, illegal immigration or
terrorism. He obviously has taken it
into an area of civil law but it is perhaps in those major issues of crime,
terrorism and immigration.

Ms Lambert: One of those I would have some particular
concerns about would be questions on trafficking, and obviously there are
particular areas where the UK does not necessarily join in with the European continent
in terms of issues about the 30-day residents' permit, et cetera, but I do
think that there are a lot of ways in which we could be developing far more in
terms of evidence coming about how we could disrupt trafficking rings, how we
could deal with and imprison traffickers, where again the areas of co-operation
that Timothy has indicated are not there.
They are certainly not as well developed as they might be, not least
because I think we are looking at a single source of information almost coming
via the police rather than other areas on the employment side, et cetera, where
we could draw information, so that we have a lot of things which look very good
on paper but, again, you really feel that the background work is not being done
to tackle as appropriately as it might be.

Mr Cashman: I welcome Tim's gesture towards greater
co-operation between Member States, and long may it be so. On the area where I believe we are failing,
there are two areas. One is a lack of
uniformity of approach, and on that I give the example of the need in some
Member States to carry identification papers, whether it is an ID card or something
you got from your local quartier here
in Belgium, and so citizens are acting in a kind of vacuum. A British citizen could be stopped in one of
the Member States, their ID is demanded, they do not have it. Arguably in some Member States they could be
taken off to the nearest police station.
That kind of lack of uniformity causes problems for the citizen. Where I think we cause problems for one
another, and I give the example of the European External Borders Agency,
FRONTEX, is that we set up these organisations and then we fail to give them
the resources, either the personnel or the financial resources, or certain
Member States, and I cite Poland in this example, make it very difficult for
that agency to carry out the work that it is mandated to do. That arguably in the EU is one of the most
important jobs, which is our new external borders and the protection of
those. I cite those as my two examples.

Q100 Mrs Cryer: I was going to go through a number of Mr
Watson's submissions but he is here so he can explain them himself. I have two questions and they are both based
on Mr Watson's written submissions to us.
There have been a number of initiatives, such as Europol and Eurojust,
to aid cross-border co-operation in areas where practical policing and judicial
co-operation are vital. Do any of you
feel these practical co-operation measures are sufficient to tackle the
challenge of cross-border crime, and in which areas is binding legislation more
desirable and why?

Mr Watson: In which areas is it more desirable? I think the difficulty with binding
legislation is that it has not been achievable. One of the greatest frustrations of having seen through the
process from Tampere to Tampere, as it were, from the start of the European
Union having powers in these areas through the Amsterdam Treaty, which came in
essentially at the Tampere Council in 1999, to the Tampere meeting under the
Finnish Presidency, is that the process has not really worked. It has become almost impossible to set
binding legislation. Why has it become
impossible? Essentially for two
reasons. The first is that it is very
difficult to get agreement among 25 Member States on a piece of legislation in
criminal law. There is always somebody
who will have a problem, which means that after seven years very few pieces of
legislation have actually gone through.
The second is to do with the Treaty of Amsterdam and the way it was
framed. In the Third Pillar initiatives
can be advanced not simply by the European Commission, as is the case in the
First Pillar in most of European legislation, but also can be advanced by
individual Member States or groups of Member States working together, and so
what has tended to happen is that two or three Member States have come together
with a particular bugbear, have proposed a piece of European-level criminal
legislation to deal with it, and it has gone into the system. At the same time another two or three Member
States have come together with something similar and so you have had huge
amounts of legislation fed in leading to effective gridlock. That is why I say in my evidence, Chairman, as
the critic once said of Samuel Beckett's play Waiting for Godot, "It has been a two-act play in which nothing
happens twice". The real difficulty has
been the inability of the Union, thanks to the use of the Third Pillar, to
frame legislation. There are many areas. Jean mentioned trafficking in people, which
has been a serious concern of ours over those seven years. There are other forms of cross-border
crime. We have in today's world a
situation where, effectively, to paraphrase Mark Twain, a criminal can be
halfway across Europe before the policeman has his boots on. We have created a border-free Europe for
criminals without creating a border-free Europe for protection of the citizen.

Q101 Mrs Cryer: Is your opinion that nothing happens twice due
to enlargement, would you say?

Mr Watson: No, I do not think it is due to enlargement
because I am not sure it would have been very much easier with 15
countries. I think it is more to do
with the way in which the Third Pillar concept was designed.

Mr Kirkhope: Can I just add to this point? Eurojust and Europol, of course, were set up
with very specific and quite restricted terms of reference. In order to understand this legislative side
of things we have to underline the fact that we all have different interests in
what we are trying to do in the European context. The Commission are very keen indeed to get their way, as it were,
sometimes with very much limiting the involvement of politicians, whether it be
in the European Parliament or, through the Council, international parliaments. Think there are examples of just recently,
and you will have been looking at some of them, I am sure. One is the pursuance of the passerelle, which I and my colleagues
are very much opposed to, as a device in order to achieve something which is
basically not achievable, an attempt to find a fiction in order to try and move
something forward and thereby, if you like, extend the legislative capacity
which comes from the Commission. That
is one thing. The second thing is the
setting up of this new Fundamental Rights Agency which is being pursued and is
about to come to effect in January next year, I believe. It is a Fundamental Rights Agency based on a
flawed argument, fundamental rights which were contained in the draft
constitution, a draft constitution which is going nowhere, hopefully. My colleagues will not agree with this, of
course, but I hope not.

Mr Cashman: Oh, no.

Mr Kirkhope: Oh, well, all right, speak for yourself then. The point is that we now have a situation
where we have a Fundamental Rights Agency being born as a result of Commission
pressure out of an agency which failed badly, an agency dealing with xenophobia
and racism issues which failed its task.
It did not have sufficient resources, and they are now trying to make
the personnel in that agency develop into a much wider agency in order to
achieve something which has not been approved, a constitution which is not in
effect and yet ways are found by the Commission. The simple fact is that in legislative terms we have to all of us
be on our guard, both the European Parliament in terms of its ability to be
involved in the legislative process and national parliaments, who in my view
still should take most of the detailed decisions following the directives that
are the lion's share of what comes out of Brussels, and that is why I feel we
have to be very careful here and all of us have to protect our interests in our
own way, even though those interests might be slightly different.

Mr Cashman: Just by way of correction, of course, the
Fundamental Rights Agency can only be set up if it is agreed unanimously by the
Council, and, interestingly, the Commission did not have to do this but it
decided to engage Parliament in this and not just in a consultative
manner. I am sure you as directly
elected politicians would welcome the engagement of directly elected politicians
in such a debate, and, after all, the Charter of Fundamental Rights is based
upon, but not exclusively, two commitments under the European Convention, not
least the European Convention on Human Rights.
In answer to Mrs Cryer's question I think binding legislation is only
part of the issue. Europol, Eurojust, the
European Borders Agency are, I think, part of an arsenal. I worked very closely on the Data Retention
Directive where Member States have to retain data, mobile data, data on the
internet for a certain period of time.
We argued that what we needed were common minimum standards across the
whole of the EU, but, more importantly, properly enforced and implemented
common standards, and this is where the Commission's role is vital, because
often laws are not properly transposed and then not properly implemented. That is why I say that I believe binding
legislation is only a small part of the equation. I would argue that what we need to do is go back, and with
enlargement any multinational will do this, and say, "We have now
enlarged. Let us do an internal audit
of what we have agreed to do, see if we are doing it and see what we need to
add on in order to deliver". The big
issue with a single market without borders means that crime equally is without
borders. One of the biggest issues that
we deal with is people trafficking, as Jean referred to, the trafficking of
children. Yesterday we were discussing
in a decision which is now before our committee on whether it is right on
travel documents to ask children as young as six to give their fingerprints,
and, of course, the association of fingerprints with criminality immediately
springs to mind, but how else do we use a mechanism that makes absolutely
certain that that travel document is issued for that holder and that that
parent is the real parent? We have to
make sure we have mechanisms which hold up across the 25 Member States.

Ms Lambert: One of the issues about organisations such as
Europol and Eurojust has been that in many ways they were also set up not just
for practical purposes but also partly as confidence building so that Member
States could get used to working with each other without feeling that their own
territory was being stepped upon. Of
course, you have a mismatch then with the time that it may take to do that and
the timescale that you may then want to introduce legislation, so that you do
not necessarily have a fully functioning body at the point at which you need it
in terms of legislation if you want to introduce that. That is one of the issues. There has also been an issue for some of us
about the oversight of those bodies, and this is one of the areas where I part
company with my party in terms of the Constitutional Treaty where I think that
certain of the powers being given to national parliaments, for example, in
relation to Europol could have been extremely useful in terms of looking at how
that was functioning from a more national perspective. I think that would have been extremely
useful. In terms of binding
legislation, yes, there will be a problem there, not least because of this
plurality of where legislation can come at you from. We have found ourselves at times with almost competing
legislative proposals from particular Member States who sometimes you feel want a bit of trophy legislation they can wave to
show they are active on a particular issue.
That also has not helped, and indeed on occasion Parliament has rejected
certain of those proposals because we felt that they had been poorly thought
through. Enlargement within that has
also not helped, not necessarily because of who the states are but simply
because there are more, and again if you are trying to do confidence building
work and then you have new people coming in, it does not matter who they
are. Again, you are going to have to
take a step back before you move forward.
Those are certain of the issues which have arisen there. I will leave the debate on the Charter of
Fundamental Rights for another time perhaps.

Q102 Mrs Cryer: Following Michael's comments about
fingerprinting, I would just love to ask you about the niqab and veil but I
will not because it will just take too long.
There have been objections raised about moving national areas of
criminal law and justice to the Community method. What is your assessment of the implications of a move to the
Community method for the UK's legal and justice systems?

Mr Cashman: Can I be quite simple and say that the UK,
Ireland and Denmark are, of course, in a very special position in that they
have the opt-in into police and judicial co-operation in criminal matters. I believe we should look at it on a
case-by-case basis, and if it is in our interests to opt in then we can do so,
but I would feel perhaps rather queasy about ceding powers in this area at the
moment. Arguably we are not ceding them
because we would have to opt in, but I think the debate in the House of Commons
should inform the decision that is taken.
The UK, like other Member States, has its veto in this area, but then
perhaps we come to a position whereby, if those Member States that do not have
the opt-in wish to shift from the Third Pillar to the First Pillar, does the UK
veto that? I think it is a very big
question which will have to be taken, I think, in full awareness of the tabloid
hysteria that any such decision would follow.

Mr Kirkhope: This is where we get into some very
interesting areas indeed. I am a lawyer
by profession, apart from having been, like you, Chairman, a Home Office
minister, and I do feel very strongly about this point. It was raised in the context of are we going
to move from having essentially national approaches, historic approaches, for
dealing with civil and criminal law, to, if you like, we can call it the
Community method or we can call it whatever?
The truth of the matter is that it seems to me that some people have
this dream but it seems to me to be a totally impracticable and impossible dream
if that is the case. It is a bit of a
nightmare, in fact. You just have to
look at some of the legislation which we have passed through the House of Commons
in areas such as company law, property law, even family law, and the great
controversy that we have had in trying to pass these things, and we have to
look at the compatibility between the English and the Scottish systems for a
start. If you start doing this on a
European-wide basis you immediately come into conflict with at least three or
even four basic different legal systems, historic systems, and I just think
that this is one of those impossible situations. We should do more, Chairman, to try and get recognition of each
other's decisions and judgments, particularly in civil law. I think that is important, and obviously
more and more as we see commercial developments we have to have compatibility
in accounting standards, we have to have compatibility in a lot of the things
which are in Europe, for our single market, for instance, in those sorts of
terms. If you take this further into
the whole field of civil law, if you take it into the field of criminal law,
then I think you are entering into territory which really is --- and the reason
why we would like to maintain the Third Pillar so much is that we are then
dealing in areas which are essentially areas of competence for national
legislatures. I think the British
Government has a very similar view to that, I think there is a lot of agreement
in Britain on that fact, but I think that we have to make sure we do not waste
too much time and too many resources on moving along impossible routes because
of some kind of philosophical or dream-like approach. It is not sensible. We
are in the business of pragmatism here, most of us, regardless of our parties,
but this is one step too far in my view.

Mr Watson: Chairman, your colleague and my compatriot
Michael Connarty carried out through the European Scrutiny Committee an
examination of this issue, as you will be aware. Their conclusions essentially were two-fold, first that national
sovereignty in these matters or over matters of what constitutes a crime, what
sanctions there should be for offences, procedural rights and so on, was
essential, and their second conclusion was that one should not allow the
European Parliament to have the right of co-decision on measures of police and
judicial co-operation because most of its Members do not represent and are not
answerable to the United Kingdom. I
would disagree with them on two issues, first because I believe that the
concept of national sovereignty no longer has the same meaning today when so many
people are moving all of the time, when crime is moving across borders with horrific
speed and implications, and it seems to me that if one insists on the argument
of national sovereignty one is saying that we are happy for UK citizens, who,
for example, live in Spain for half of the year, not to have the same
procedural rights as they might have in the UK in criminal matters. We are saying, for example, that effectively
we would renounce the right to protest if our constituents in Greece receive
longer sentences for an offence than they would in the UK. I think there is a genuine interest for the
United Kingdom, a country which has a higher percentage of its citizens living
and working abroad, to seek to defend those citizens better by going for a more
common approach to procedural rights. I
will not raise the case of David Irving being prosecuted in Austria for denial
of the Holocaust but it seems to me that there is an argument there where
national sovereignty perhaps no longer has quite the same sense that it used to
have when it comes to matters of procedural rights, sanctions and so on. On the question of whether the majority of
the Members of the European Parliament represent and are not answerable to the
electorate in the UK, my response to your European Scrutiny Committee would be,
well, nor are the majority of members of the Council responsible to or
answerable to the UK, but where it strikes me as different, and I think
probably all of us would have the experience of working on the committee here,
is the suggestion that somehow members of the European Parliament from other
countries do not share our basic values when it comes to upholding the
law. My experience is certainly that
they do. Members do not vote along
national lines when we have votes on these issues. If they divide they tend to be along party lines rather than
along national lines. If we are
concerned about civil liberties, if we are concerned about longer sentences, we
need to recognise that the approach taken by other countries is not
fundamentally different from that taken by the United Kingdom, and therefore I
would argue that we should be perhaps a little more relaxed about these things
than we have been able to be in the past.

Ms Lambert: I think that that movement is potentially
quite profound for the legal and justice system in the UK. I think it is profound for many of the
Member States and in many respects that is often not really taken into full
consideration. I think that we have
seen measures to try and gain a unanimity of approach, whether that is the
arrest warrant or whatever, where the full implications were not really thought
through and it has created a considerable number of problems. However, there is also within this the
argument, is it then right for it simply to be a decision of Council which then
belongs to no parliament, and national parliaments do not really have oversight
except in one or two Member States which mandate their governments, and it does
not fully belong in the European Parliament either, particularly in terms of
follow-up and viewing how these particular decisions are implemented? Those are the things that we are trying to
balance up with it. Where is the
democratic oversight of the decision-making?
What is the most democratic way to make those decisions? Is that simply between governments? Is it to involve a parliament, in which case
this is a parliament which obviously has an interest because it is international,
and certainly my political group supports the European method, as it were, for
decisions that are being made at the European level as a sort of a logical
conclusion to that. However, we are
also very clear that before we go far on this we really need to be clear about
what the core standards are that we want to see implemented across the European
Union because from the citizen's perspective what many of us find is that our
constituents expect the same laws to apply elsewhere in the European Union when
they are in trouble, no matter how they may vote otherwise; that is what they
expect, that things will operate as they do at home, and are often profoundly
shocked to discover that that is not the case, even if it is in terms of access
to legal aid or whatever it may be, and that for us any further steps in this
direction have to come with those core standards, those very clear rights so
that our citizens do know what applies to them across the European Union if we
are doing joint legislation. For us
that is an absolute sine qua non and
at the moment we feel that we are moving very much in terms of pan-European
legislation without the issues of redress being clear in that at all and we are
looking at prosecution rights but we are not looking at defence rights and this
is something which, if we are moving further on the Community method, whether
through the Constitutional Treaty or passerelle
or whatever it is, for us has to be absolutely part of the contract, as it
were, with our citizens.

Chairman: Thank you very much. For the record I will read what the European
Scrutiny Committee concluded on the point though I will not enter the debate
about the interpretation of it: "Moreover, there is the question [of] whether
it would be acceptable for the European Parliament to have the right of
co-decision on measures about police and judicial cooperation in criminal
matters when the most of its Members do not represent and are not answerable to
the electorate of the UK". That is, as
it were, from the report directly.

Q103 Mrs Dean: Do any of you believe that implementing the passerelle could lead to better quality
decisions and would these decisions lead to more real action by Member States?

Mr Cashman: Again, it depends on that which is
proposed. I suppose I differ from what
both Graham and Jean have said in that I think most citizens look to their
Member States, the place that they live, as the enforcer of the laws and the
upholding of the rights and the principles.
Where we get a European dimension is that we do not have the same laws
but we have different laws which enshrine the same rights and the same
principles, and so therefore we have to have mechanisms by which we can enforce
and ensure that what we have agreed at EU level is, as I said earlier, properly
transposed and implemented. Let us deal
with something that we have had, the Data Retention Directive. It could actually have been proposed under
the Third Pillar but they decided in Council that they would propose it under
the First Pillar, so we had co-decision.
Let us say that it was under the First Pillar. If each Member State says, "Yes, we have absolutely something to
gain by ceding our sovereignty on this particular issue of data retention and
data storage", then the arguments can be made and the case can be put to each
Member State's citizens, and this is where I come back to what I think is the
central issue and it has informed part of the debate this afternoon. If we want to bridge the democratic deficit
in these measures we can do it quite simply by having the Council of Ministers
meeting, deliberating and voting in public, and that is crucial if they are
then held accountable for the decisions that they have taken in the Council and
they are held accountable to their national parliament. Once we begin to bridge that democratic
deficit we can see where we will need to act, because often what is done is
that deals are done in Council and the next thing we know is that a directive
has come through, it has come through under the First Pillar rather than the
Third Pillar, no explanation why, no transparency, no accountability. We need to look at the transparency and the
accountability, and once we get those I think we will probably find that we
will not have so much need for the passerelle
because the debates will be much more honestly informed and will be held
accountable.

Mr Kirkhope: It is a device, as I said before, and "passerelle", of course, means bridge.

Mr Cashman: Gangplank, actually.

Mr Kirkhope: A gangplank - it can be, yes, in certain
terms that is right, it has a sort of nautical meaning too, I believe.

Mr Cashman: Let us walk the gangplank.

Mr Kirkhope: The thing is that I think it is becoming a
bit of an obsession, this thing. I do
not wish in any way to diminish the importance of it. It is vitally important to talk about it. It is not of terribly great interest to our
constituents. My constituents in Yorkshire
for a start are not terribly interested in the passerelle, I do not think, and indeed I am very disappointed,
Chairman, that Mr Connarty --- actually, having now heard the official report,
Mr Connarty has not said quite what I think Mr Watson suggested, that we were
basically a waste of space, but I do think there is an issue here regarding
-----

Q104 Chairman: That is why I thought I would read it into
the record.

Mr Kirkhope: That was very helpful; thank you,
Chairman. I think there is an issue
here about the question of the democratic accountability. The greatest thing we could have done for us,
as Michael has said, is to have the Council really being transparent and
meeting in public, which we were promised. I got the promise myself out of the Prime Minister in the British
Presidency. I was very disappointed
that the Foreign Secretary went back on that arrangement.

Mr Cashman: And then she went back on going back.

Mr Kirkhope: I think there is a little bit of movement of
the caravan going on then. As far as I
am concerned I think this is very important, it is the most important
thing. The passerelle issue is, I think, a bit confusing but at the bottom of
it all it moves us away from intergovernmental co-operation to increased
harmonisation. It moves us away from
being able to pursue our own traditions into other people's generalised
traditions which does not please anybody at all. The interesting thing is that in those areas of justice and home
affairs where we have moved to qualified majority voting experience has not
shown that it necessarily means a more effective decision-making process or a
better one. I do believe it is
something we should not be pursuing.
The Germans are very keen not to activate the passerelle because they want to put all their efforts into getting
the constitution back. That is what I
understand the position to be, so it will not happen in any event here for some
time, but I think we should reflect in the time we have available and we should
really come to a conclusion that the passerelle
is not something that we ought to run with.

Q105 Chairman: Is there a dissenting view or can we move on
to the next issue?

Mr Watson: Chairman, the point of my written evidence is
to argue that the passerelle is
needed. It is needed because the
European Union is failing to protect its citizens from the effects of
cross-border crime and it is failing to guarantee its citizens the kinds of
rights they ought to enjoy under the law.
My argument for the passerelle
is because I do not believe it likely
that the European Constitution will come into force in the near future. We do not need it to come into force in
order to achieve these objectives of protection of our citizens because we have
the option by unanimity in Council of a move to the passerelle under the Amsterdam Treaty and, whereas the European
Scrutiny Committee argued that we would see the present certainty about our
ability to protect Britain's interests in justice matters replaced with
uncertainty, I believe that in fact that would not be the case because I believe
that decision-making at European level has generally worked well. If I might just give two very brief examples,
I had the honour when I was Chairman of the Committee on Justice and Home
Affairs here in 2001 of taking through the House the European arrest
warrant. It was a response to 9/11, it
was a very effective tool not only in the fight against terrorism but in the
fight against serious crime more generally.
The European arrest warrant needed to be accompanied by a directive on
minimum procedural guarantees for those accused in criminal proceedings. That measure on procedural rights that was
put forward by the Commission very shortly thereafter has been stuck at the
bottom of the Council's in-tray ever since, with the effect that somebody
accused in another Member State of the Union does not even have the right to an
interpreter, because we have not managed to put that into law. These are the kinds of things, bread and
butter issues, that we could be sorting out.
Michael Cashman mentioned the Data Retention Act. Again, Charles Clarke took an issue which
had been stuck in Council for five years and managed to get it through in six
months because he decided to use a First Pillar legislative procedure rather
than a Third Pillar legislative procedure, and that I think is the proof of the
pudding.

Q106 Mrs Dean: What difficulties do you as MEPs face in
assessing the impact of EU policies on the ground, rather than where there is
legal consistency across the EU, an assessment of actually how EU policies were
working in practice? Are you able to
assess those as MEPs?

Mr Cashman: Janet, if I may I will respond to that and if
I am way off the mark tell me. The
approach that I and others take, and I will give you an example, is that when
we have a piece of co-decision, and I worked on what is called the Schengen Borders
Code, which is the conditions for entry into and exit from the Schengen area,
and the conditions upon which Member States who have agreed to go to the
Schengen area will re-impose their borders.
When we got the proposal from the Commission the first thing we did was
to go and talk to the people who enforce the code. We went to the borders and talked to various officials about the
problems. Of course, whilst you are
there you see the way people are treated, you see the effect of certain
controls on them, sometimes the effect on their dignity, sometimes when you see
a woman in a glass booth with her child awaiting return to an African country
you wonder about how she will be treated during her period there. On the basis of the experience, and talking
to the people who have to implement the law, we then brought forward our
recommendations, and those recommendations were accepted unanimously by the
committee and by the Parliament and, interestingly, for the first time ever in
a piece of legislation which is not to do with non-discrimination, it has
non-discrimination measures within it.
I think it is absolutely essential that when we approach any of these
matters, which have a direct impact on citizens and law enforcement agencies
and enforcement agencies, it is vital that they are engaged in the
pre-legislative process.

Q107 Mrs Dean: Does anybody want to add to that?

Ms Lambert: Yes, I do think there are difficulties in
some respects. The process that Michael
has outlined, when we can do it I think it is extremely useful and it works; it
is very powerful. We have been doing
that not least with conditions in some of the reception areas at EU borders,
and again that has been extremely informative.
There are issues within it structurally in terms of coming back to
assess how things have been implemented once it has happened, partly in terms
of the workload of the committee in that I think that many of us would feel
that we do not actually have the time to do the depth of scrutiny that we would
want to do, and we need to look at how we manage that, but quite often your
initial point of report is the Commission, that of course is working a lot of
the time with what Member States tell it and what we are more interested in
almost is what Member States do not tell it, so therefore we are heavily
reliant, as many parliaments are, on professional bodies, NGOs, and doing our
own fact-finding on it. The other
element that comes into it at times as well is budget. We are limited as a committee in the number
of fact-finding missions, delegations visits, whatever you want to call them,
that we can do. Again, that is a
problem at times. There are things that
you want to do and cannot do, and we have only recently - and I may be
corrected on this by colleagues - been allowed to set foot outside the European
Union to look at the effect of certain of the visa procedures and so on that we
are putting into action. That has been
quite a revolution, I think, being allowed to step outside to see what is
happening. Those are some of the other
factors that certainly mean that you do not always get the depth of that you
would like to have, particularly looking at the implementation two or three
years down the road, the review side of it.

Mr Kirkhope: Chairman, this is a question that I think
Members of Parliament can also ask themselves and consider. We have got impact assessment in quite a lot
of the things now. The trouble is that
the impact assessment that I want to see is the impact on my constituents. That is the difficulty about the job we do,
and we do get remarks made about us: we are so remote, we are over here and we
are not over there, whatever it is, and yet we are the first place, the first
location, for legislative proposals, whether those are proposals come out of
the Commission or whether they are proposals that are arising out of Council
debate. We are often the first place
and therefore in many ways the decisions we take, and REACH was a good example
of this, the chemicals directive, are extremely difficult to handle because, of
course, REACH has impact right down to our constituents who are commercial
chemical companies and individuals and a lot of NGOs. Incidentally, we do have an enormous amount of feedback in this
Parliament from NGOs and organisations, probably, may I suggest, more than
Westminster does, because often that is the point at which they need to get at
legislators of one kind or another. In
terms of the knowledge of the effects, and I do not know whether I am getting
close to where this question is from but my view is that it is extremely
difficult and one of the best ways of doing it is for us to work more closely
with other legislators. I think we have
always had this discussion but I repeat it today: it is vitally important that
MEPs are able to work even more closely with MPs to see the process from start
to finish and then we can perhaps together monitor how the effects are felt by
the public. That is to my mind the big missing
thing in my life, that I would love to see this happen and I do not think we
have ever quite made it.

Q108 Mr Benyon: We have had conflicting evidence on this
whole area of scrutiny. One group of
people, Open Europe, who came to see us last week, said, "If the passerelle clause is used it would mean
that for the first time in the UK's history criminal laws would be passed
through parliament as secondary legislation, and would not receive full
parliamentary scrutiny, as they will be implementing EU legislation". In Mr Watson's evidence he has suggested
that the role of national parliaments in scrutinising government decisions is
greater under the Third Pillar procedure.
How would the role of national parliaments in scrutinising EU
legislation change under the First Pillar and would a more transparent process
enable national parliaments to be involved earlier in the process, rather as
you were suggesting?

Mr Watson: I am very much in favour of more transparency
and I think the progress that we have made in opening up the Council of Ministers
to scrutiny when it has legislated has been tremendously helpful in this. I am not sure that in reality it would
reduce the role of national parliaments in scrutiny. What I think it does is that it perhaps changes the way we do
it. One of the biggest advances we have
made in recent years, and it has been a process in which your Chairman has been
involved because he has chaired some of the sessions, is now on a regular
basis, twice or maybe three times a year, national parliaments from Member
States and the European Parliament come together by sectoral policy area and
look at how legislation is working.
Your Chairman chaired recently a session which looked at the European
arrest warrant and two other pieces of major legislation. It seems to me that that is the most
effective way of scrutiny today because we are looking at how things are
working in different countries and we are looking also at the challenges facing
the Union as a whole. It seems to me
that many of the challenges today are supranational and therefore the most effective
responses are also supranational responses.
However, I am worried and I share your concern about the extent to which
parliaments are currently able to scrutinise what has been done at European
Union level. If you take, for example,
some of the agreements we are reaching with the United States on anti-terrorism
agreements, on air passenger details and so on, these are not scrutinised by
national parliaments because they are treaties signed by the European Union
with a third party rather than by a Member State with a third party, but nor
are they scrutinised by the European Parliament because they are Third Pillar
issues. One of my arguments in favour
of the passerelle is that you are going
to get greater parliamentary scrutiny all told if you use that particular
clause within the treaty.

Mr Kirkhope: One of the big problems about these sorts of
discussions, and the passerelle is a
good example, is that you tend to get exaggeration by those who are arguing in
one direction or the other. I therefore
to some extent share Graham's view about the effects in terms of parliamentary
scrutiny. I think the big problem we
have, as he suggests, is that there is not enough parliamentary scrutiny per se
in national terms. It is not so much a
question that the passerelle would
then render this an impossible situation.
I think that we already have that in place as a problem which needs to
be sorted out anyway. I am opposed to
the passerelle because I think it
would certainly as a device affect our rights, not necessarily in the scrutiny
area but in determining the matters which I think are very much national
matters to be determined.

Mr Cashman: First of all, I do think that there is a
greater role for national parliaments to engage in the scrutiny process at an
earlier opportunity. One of the very
good ideas contained within the constitution was the obligation on national
parliaments to debate the Commission's annual work programme, and the more debate
we have, interestingly, the easier our jobs will become because its connection
back to the Member State will be obvious.
My belief is that use of the passerelle
going from Third Pillar to First Pillar would mean that any decisions taken
within the Council would have to be referred back to the Member State. Whether it is merely for endorsement or
whether it is possible for the Member State to reject, I will be honest with
you, I do not know, but, of course, where a supposed new power comes in is the power
of the European Court of Justice to intervene in these matters, and at the
moment in this area the Court of Justice does not have that remit.

Q109 Mr Benyon: You have powers of scrutiny and co-decision
that traditionally belonged to UK MPs.
In fact, most of our constituents still think to an extent that we still
have those powers. How effective are
you at scrutinising EU initiatives on behalf of the UK, and I will widen that? Would your and our constituents feel that a
better job was being done if you scrutinised from a UK perspective rather than
in your own political groupings or across all Member States, and there was a
more structured approach to really feeling that the impact on the British
electorate was being addressed more directly?

Ms Lambert: I may part company with others here but I
always have problems with this concept of the British interest because I am
never entirely sure quite whose interests we are talking about, whether it is
the government of the day or whether it is other institutions. I think that probably the electorate would
think that the job is best done at Westminster because that would be where it
is reported; therefore they will be aware that there is a job being done. Quite often at the European Parliament level
a lot of people do not know that there is a job being done despite the best
efforts of many of us to get that information out there. I think this is where what other colleagues
have been saying about the involvement of the scrutiny procedure in the British
Parliament becomes very important as part and parcel of this. To scrutinise it from a British perspective,
whatever we may mean by that, is the job of the national parliament. Our job is to look at how this works not
just for the UK but also for elsewhere and that there is a balance sometimes to
be found in that. Sometimes we will
consider that we do want to defend a British interest. At other times maybe there are other things
that we think outweigh that, so this is the issue when we are looking at
things, particularly in a co-decision procedure, that the involvement of our
national parliaments at that point, further upstream, is really important, not
when we have made the decision and you are then implementing it. It is what the framework of the decision is
and that is where that input will be particularly valuable.

Mr Kirkhope: We do work in an extra dimension to national
parliaments and that dimension is in our national interests, so I disagree with
this point that is being made. I can think
of a whole lot of instances where my colleagues and I have worked with other
major political parties in the UK on something that is patently in the
interests of Britain and we do it, so we obviously are in our groupings on the
left or the right or whatever it may be and in general we are pursuing matters
because we are pursuing them as politicians on the right or the left, but then
there are definitely matters - and I am trying to think of some; you can
probably think of some, Michael - where we will work in the British interests
as one of our priorities, our party interest and the national interest. Those are the things I regard as the two
priorities here, and I think it does happen and I think it is right that it
should happen as well. After all, we
are elected from a particular country rather than just in an amorphous European
way.

Mr Cashman: Of course there has to be a British
perspective; otherwise there is no common interest. There is a French perspective and we come together and we try and
work out something that probably satisfies everyone but the French and then we
have got the right deal - and that was a joke, for the record! In a way I think there is a bit of a con
that has gone on, that we have taken these powers of scrutiny. In some areas, yes, where we have
co-decision, and that has increased under the various treaties from Maastricht
onwards, but of course some powers have been ceded only to Council, those
government ministers acting in Council and then deliberating and voting in
secret, and that does not get reported back, their position and how they
voted. I wrote the law - and it is law
- across the whole of the EU on public access to all the documents held,
received or produced by the three institutions, and the definition of
"document" was extremely wide, believe me.
This was a method by which citizens could hold the various institutions
accountable and there has still been resistance within the Council for this
transparency. Where we have real
scrutiny and we can bring forward legislative change we operate absolutely at
full throttle and with all due regard to the people who have elected us, but
where we do not we give our opinion, and if the opinion is disliked it is
merely put into the filing cabinet called the waste paper basket. That is why the more co-decision we have the
more effective we are as scrutineers and as legislators, buy I would say to all
of those Member States and those politicians who believe that we have become
the scrutineers, you must scrutinise the scrutineers.

Q110 Mr Clappison: Can I turn to the Schengen Agreement which
you touched on a moment ago? Could I
perhaps ask a broader question on that, how you view the advantages and
disadvantages of the UK being outside the Schengen Agreement?

Mr Cashman: The UK, of course, has, like Ireland and
Denmark, an opt-in to Schengen.
Interestingly, I think it is Norway and Iceland and Switzerland who have
opted into Schengen. Of course, if you
look at Ireland and you look at us, we have very different needs. We have a border that is solely our
own. It is not, unless you look at
Northern Ireland, shared with another country and therefore we have very
special needs, so therefore I think it is right that we have decided to opt
out. However, there are problems
affecting people who want to travel without restriction, and indeed some people
do find problems when they come from other parts of Europe into places like
Gardamadi(?) and they have not brought any ID or a passport, going back to
Janet's question about the effects on some of our citizens.

Q111 Mr Clappison: But broadly you are happy to keep the present
arrangement?

Mr Cashman: Yes.
I would be happy to keep the present arrangement. Let me say the Schengen Borders Code as not
just a piece of law. Out of that came a
manual that will be used by all of the border guards, so it is another example
of laws having direct effects on citizens and on the people who are actually
implementing it.

Mr Watson: My take will be a slightly different
one. I think that remaining out of the
Schengen convention assumes that we take the responsibility to police our own
borders. I would be rather more
convinced of that if it were not that every government for the last 12 years
has cut the number of Customs officers employed in the UK. Frankly, I see some gains in us joining
Schengen because I think it would help us in achieving some of the things we
wish to achieve in the protection of UK citizens against cross-border crime and
so on. However, I choose another
argument as my main argument against Schengen: the cost to British businessmen.

Q112 Mr Clappison: Against the opt-out from Schengen?

Mr Watson: Against the opt-out. It is the cost to British businessmen of
having to queue at foreign airports, or railway stations if it is the Eurostar
into Paris, compared to their continental competitors is huge, an absolutely
massive disruption to their lives. I
think we would be far more successful economically if we did not have to put
our own citizens through those hoops.

Mr Kirkhope: I am very happy that we should maintain our
position, were that the case, of course, because over the last few years the
Government has been, as we know, opting into parts of Schengen, certainly the
co-operation areas of Schengen, and my worry slightly is that we will suddenly
wake up one morning and find that we have opted into the last bit of it, which
I would be very unhappy about. I think
it is quite unnecessary and I think actually we are right to maintain our
position because it also then spreads over into areas such as immigration,
which we have not discussed, I know, Chairman, today but which used to be my
brief at the Home Office, and although we did have some changes and
redeployments of our border controls, Graham, I think it is only in recent
years that we have seen the complete removal of the outward checks, which I
think was one of the causes of our misfortunes at this time in terms of
immigration matters. I am sorry to
mention that but it is true, I think. I
am very concerned about this whole issue of Schengen. Of course, the new enlargement states are obliged to comply with
the Schengen acquis by, I think,
2009. At the moment this is proving an extremely
difficult thing, and whilst I want us to be out I am really very happy that
they should be in, or that at least that there is some clear policy for the
external borders of the EU because we are obviously concerned that those
borders are properly maintained, albeit we are not in Schengen. We should do far more as a country in my view
to try and give assistance where we can to ensure that the Schengen acquis is complied with by those states
which are obliged to comply with it, if you know what I mean. I think that would be in our interests in
the same way as, although we do not want to be members of the euro, we do at
least want the currency itself to be stable.
It is in our interests as a country.
Therefore, I think we should take that view, that we retain our position
and we look at our immigration process more carefully but also that we do give
aid to the accomplishment of the acquis
for the enlargement states, which really has to be achieved by 2009, but the
way things are going, Chairman, it looks as if it is not going to be complied
with or achieved.

Ms Lambert: I think this almost pick-and-mix attitude
towards Schengen becomes increasingly untenable. There is a whole set of information exchange that goes with it
which occasionally affects our citizens, not least if they are travelling for
what might be seen as political purposes but they do not get the benefits of open
borders either. There is an increasing
desire coming through to be treated on the same basis as other EU citizens and
we have that freedom of movement.

Mr Cashman: Just so that we are absolutely clear, of
course, the UK has opted into information sharing and it is vital that we are
aware of who is coming into our country or leaving it and that we work with
others to track those who need to be tracked.
I just want to say that because there is the Schengen area it must be
realised that Member States still police their borders. They still have Customs operations in those
areas. They just have the abolition of
border checks.

Q113 Chairman: Can I thank you all very much indeed for
giving evidence. I probably should not
say this on the record but I will. The
idea of inviting you as colleagues to come and give evidence to us was cooked
up by your colleague Den Dover and myself in the margins of a Lords and Commons
cricket game in north London in early September, but I have to say from a
personal point of view that I think it has been an extremely useful session and
it does seem to me - and you have said very similar things - that we should
perhaps look at occasional opportunities for members of your committee and
members of our committee to meet together, perhaps on occasion for more
informal but substantive discussions on some of the policy issues that come up.